French Special Forces Targeting French Citizens Fighting for ISIS in Iraq

In the midst of all the U.S. domestic and Trump coverage, it’s worth noting a front-page Wall Street Journal story from ten days ago on the French government targeting French citizens fighting for ISIS in Iraq. Reported by Tamer El-Ghobashy, Maria Abi-Habib, and Benoit Faucon, the Journal’s May 30, 2017 article says that French special forces “have for months enlisted Iraqi soldiers to hunt and kill French nationals who have joined the senior ranks of Islamic State,” according to Iraqi and current and former French officials. French special forces and intelligence services have provided to "Iraqi counterterrorism troops the names and photographs of as many as 30 men identified as high-value targets.” According to the story, an “undisclosed number of French citizens have been killed” using location coordinates and intelligence supplied by France.

Though the French Ministry of Defense declined to comment on the secret operation (saying merely that “French forces work in close cooperation with their Iraqi and international partners … regardless of national origin”) the Journal reports that:

The motive for the secret operation is to ensure that French nationals with allegiance to Islamic State never return home to threaten France with a terror attack, said a current and a former foreign-affairs adviser to the French government. France has been the target of several deadly attacks either inspired by Islamic State or orchestrated from the militants’ Middle East strongholds, including the November 2015 Paris strikes.

The facts supplied in the story don’t permit a definitive analysis of the legality of this targeting practice, even assuming the motive ascribed by the reporting. However, it would appear that the French government has determined, as a matter of international law, that these French nationals are either combatants integrated into ISIS’s fighting forces or else some form of civilian taking direct part in hostilities subject to targeting at any time. That strikes me as an unremarkable legal conclusion, even limited to just the facts as given in the story. From an international law standpoint, if the French nationals fighting as part of ISIS are directly targetable—subject to “first resort to lethal force” without warning or attempt to capture—I can’t see that France’s motive (if correctly reported) to kill these fighters to ensure that they cannot return to France is relevant to the international law of armed conflict (LOAC) analysis.

One could raise various legal objections, such as claiming that the targeted fighters fall into some special category of civilian taking direct part in hostilities that would limit targeting them to times when they are actively taking direct part. Or it could be argued that international human rights law (IHRL) applies to the situation (despite the fact that this is an armed conflict to which LOAC applies) and that French forces must therefore attempt, or at least consider the feasibility of making the attempt, to capture before resorting to lethal force.

Under what is perhaps the strongest argument for the position that the application of IHRL renders the direct targeting of these men unlawful, despite it being lawful under LOAC, the French government’s motive (according to the article) is potentially relevant. How does this argument go?

France has no death penalty. From an IHRL standpoint, therefore, that fact might make the killings an internationally illegal, de facto, application of the death penalty—an executive-directed, extra-judicial execution making an end-run around France’s lack of a death penalty. (The killings might also be a violation of domestic French law, though the article says, quoting French constitutional law scholar Michel Verpeaux, that France’s “laws and constitution offer little protection to citizens who take up arms with militant groups to fight the government"; he is further quoted as saying that “it’s a highly uncertain situation with few legal rules.”) In that case, it would have to be shown that the government's motive is legally relevant in this IHRL argument, that the French government acted from an improper motive under IHRL, and that IHRL applies irrespective of the legality of the targeting under LOAC.

Given the legal uncertainties, the article says, French special forces “maintain their distance from the killings … by directing Iraqi fighters to target French Islamic State fighters, according to the current and former French government advisers.” France (along with the U.S., UK, Australian, and other states taking part in the coalition against ISIS) has formally notified the Security Council of its use of force, describing ISIS's actions as a "direct and extraordinary threat to the security of France." Legally the French position is likely best understood as co-belligerency with Iraqi government forces against ISIS in a non-international armed conflict (NIAC). The killings are lawful with respect to Iraqi government forces; so far as Iraq is concerned, legally these ISIS fighters are combatant or targetable civilians taking direct part in hostilities like any other targetable combatants. Moreover, since this is a NIAC, captured non-governmental fighters engaged in fighting in violation of Iraq’s domestic law can be tried and punished for those domestic law violations—and Iraq does have the death penalty.

An unnamed French official quoted in the article says:

If anyone is alive, in jail, because they surrendered, they will be executed in Iraq for joining Islamic State. And France won’t intervene … It’s a convenient solution.”

Additionally, a senior Iraqi counterterrorism officer is quoted as saying:

They are dealing with them here, because they don’t want to deal with them at home … It’s their duty. It’s common sense. The most lethal attacks overseas were in France."

My own view is that this is indeed common sense and, moreover, it’s legal. But that's principally because my own view is that LOAC displaces IHRL as lex specialis, and that the LOAC law of targeting legally controls. This is (approximately) the U.S. view of the LOAC/IHRL debate. France, however, like a number of other countries, appears to have gone further in accepting IHRL as applicable, in some regards and to some extent, even in an armed conflict otherwise governed by LOAC—though whether any such acceptance is a matter of unrevisable views of law or policy is an important question.

Additionally, I use “appears” here because (without going into a lengthy discussion) even if in principle France accepts the juridical concept of the operation of IHRL in a LOAC armed conflict, it's far from clear as to the specifics of what, how, to what extent, and when France accepts a role for IHRL—including what parts of IHRL and in relation to what parts of LOAC—in an armed conflict governed in the first instance under LOAC. It’s one thing to accept the general principle, and another to have adopted a legal view, not just in general, but specifically on legal topic x (IHRL re right to life) in relation to legal topic y (LOAC re law of targeting), in highly specific factual circumstances z. And it's still another to believe that the government's legal view on these topics is genuinely unrevisable—as distinguished from a government's evolving legal views and legal policies, being tested in real life, well short of established, clear conditions of legality and illegality.

French government lawyers analyzing the situation almost certainly place great weight on specific facts. The devil is in the details, and many of the legally relevant facts have likely not been revealed publicly. I would guess, however, that the lawyers have found more than ample room to address potential IHRL claims in these circumstances. I would also guess, though of course I don't know, that one of the considerations is that even if the principle of IHRL application is accepted, the LOAC law of targeting is so fundamental to the lawful conduct of armed conflict that it might trump the application of IHRL provisions. Again, speaking my own view, any direct targeting of a person potentially raises IHRL issues of right to life; I would have said that the lawfulness of the targeting under LOAC is sufficient to end the discussion under IHRL. But of course I'm not a French government lawyer examining this in light of public and non-public legal views held by France. In any case, there are also questions of government policy in play as well as public perception. The article states that France debated the legality

of targeting its citizens when it joined the U.S. bombing campaign in Syria in the fall of 2015. An October airstrike that year apparently killed French militants near Raqqa, and the government sought to tamp down criticism at home by citing a provision of the United Nations charter that allows member states to use any means of “legitimate defense” if under attack.

Since “legitimate” in this Charter article presumably requires that the means of defense be otherwise lawful under international law, the citation doesn’t appear to do much legally; it's really just part of the government’s response to the public perception issues. Returning, however, to the hypothetical application of IHRL in this situation (which I find a very big stretch, if I haven’t been sufficiently plain) the further international law question is whether France can insulate itself from claims of illegality under IHRL by having its forces direct Iraqi forces on where to find the targeted French national fighters, rather than performing the attacks themselves. ("Direct" is the term used several times in the WSJ article, though if I were a French government lawyer, I would dispute that it is an accurate legal description.)

That becomes a question of attribution of actions taken by one state’s forces (or non-state armed group) back to another state, which in turn raises such questions as whether France has effective control over Iraqi forces in a way that treats the Iraqi forces not just as a co-belligerent, but a proxy sufficiently close to and sufficiently directed by the principal so as to legally permit attribution, among other considerations. Once again, much more would need to be known about the specific facts as well as France’s legal views, not just those expressed publicly but those held internally, in order to say something useful. Legal attribution, in any case, is almost by definition a highly factual, granular inquiry.

Apart from the legal questions, however, the WSJ article also offers a wealth of factual reporting and interviews about the roles of French special forces and Iraqi forces on the ground in Mosul that are tracking down and targeting these French nationals. It makes for fascinating reading:

France doesn’t have armed drones, so government officials sent its elite forces into Mosul to locate French militants, a Western security official said. About 40 French special forces operate state-of-the-art intelligence-gathering tools, including surveillance drones and radio interception devices to help locate militants, said senior Iraqi counterterrorism officers and former and current French government officials …

French special forces often move through Mosul without Iraqi military partners. They search homes abandoned by foreign militants, as well as command centers in search of physical evidence or documents that link their citizens to Islamic State … In April, French special forces swept through a medical clinic near the Mosul University campus [formerly an ISIS command center], checking the identities of the wounded against their list of French nationals working for Islamic State. The French forces, often wearing Iraqi uniforms and driving vehicles with Iraqi military logos, are particularly concerned about any chemical-weapons specialists working on the campus …

The French special forces have a forensics team that collects physical evidence - tissue and bone from the dead and wounded, as well as discarded drinking cups and utensils - to find DNA matches with the men on their wanted list … A team of four French special forces went door to door in the [Mosul University] neighborhood in January. Two of the soldiers checked the identities of residents while the other two men stood guard. “They have their own targets,” an Iraqi counterterrorism officer said as he passed the scene.”

At the government’s weekly news briefing, a reporter asked Christophe Castaner if France views its citizens who join Islamic State as “enemy combatants,” who can therefore be targeted for assassination. “I say to all the fighters who join (Islamic State) and who travel overseas to wage war: Waging war means taking risks,” said Mr. Castaner. “They are responsible for those risks.”

Kenneth Anderson is a professor at Washington College of Law, American University; a visiting fellow of the Hoover Institution; and a non-resident senior fellow of the Brookings Institution. He writes on international law, the laws of war, weapons and technology, and national security; his most recent book, with Benjamin Wittes, is "Speaking the Law: The Obama Administration's Addresses on National Security Law."